PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 19-1287

UNITED STATES OF AMERICA

v.

CHARLES J. SENKE,

 Appellant

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(District Court No.: 3:16-cr-00373-001)

District Judge: Hon. James M. Munley

Argued July 8, 2020

(Opinion Filed: January 25, 2021)

Before: McKEE, BIBAS, and FUENTES, Circuit Judges.
2

Robert Epstein [Argued]

Federal Community Defender Office for the 

Eastern District of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellant

Michelle L. Olshefski [Argued]

Office of United States Attorney

235 North Washington Avenue

P.O. Box 309, Suite 311

Scranton, PA 18503

Counsel for Appellee

OPINION 

FUENTES, Circuit Judge.

Appellant Charles Senke challenges his conviction for

attempted sex offenses involving a minor, raising four 

objections. First, he contends that it was error for the District 

Court not to inquire into his motions regarding counsel’s 

performance. Second, he asserts that the District Court erred 

when it failed to verify at sentencing that he discussed the 

presentence report with counsel. Third, he takes issue with 

several special conditions of supervised release. Finally, he 

argues that a special assessment fee was erroneously imposed 

pursuant to a statute enacted after his offense conduct. 
3

While the District Court’s failure to address Senke’s 

complaints regarding his counsel was an abuse of discretion 

under our precedent in United States v. Diaz,

1 we decline to 

review this error for prejudice on direct appeal in the first 

instance. We also conclude that Senke was not prejudiced by

the District Court’s failure to verify on the record that Senke 

and his attorney discussed the presentence report before 

imposing sentence. Finally, because the special conditions of 

supervised release banning Senke’s computer and internet use 

run afoul of our precedent in United States v. Holena,

2 and 

because the Government concedes that the imposition of these 

conditions and a special assessment fee was plain error, we will 

remand for further proceedings on these issues. Accordingly, 

we will affirm in part and vacate and remand for further 

proceedings in part. 

I. BACKGROUND

A. Offense Conduct

Appellant Charles Senke was arrested after striking up 

an online conversation on a popular social networking site with 

an undercover detective posing as an underage boy. In the 

course of that correspondence, Senke requested naked 

photographs of the underage boy, asked about the boy’s sexual 

experiences, transmitted graphic photographs of himself and 

others, and offered to buy the boy gifts. During these 

exchanges, Senke was reminded multiple times that he was 

purportedly conversing with a minor. 

1 951 F.3d 148 (3d Cir. 2020). 

2 906 F.3d 288 (3d Cir. 2018). 
4

The pair eventually made plans to meet. Senke agreed

to travel to a mall near where he believed the boy lived. On

the day of the planned meeting, Senke’s vehicle was spotted by 

undercover detectives and followed into the mall parking lot. 

As Senke pulled into a parking spot, the detectives stopped the 

vehicle and took Senke into custody. Detectives found a cell 

phone, condoms, personal lubricant, a laptop computer, a 

memory card and other personal items in Senke’s car. 

B. Procedural History

Senke was charged in a three-count Superseding 

Indictment by a federal grand jury in Scranton, Pennsylvania 

for his attempts to engage in illicit sexual conduct with a 

minor.

3

 

He appeared before the District Court and pleaded not 

guilty. He was then appointed a federal public defender to 

represent him. Less than two months later, the federal public 

defender filed a motion to withdraw as counsel, citing 

irreconcilable differences regarding case strategy. The District 

Court held a hearing on the matter, at which time Senke 

indicated that he wished to proceed pro se. After interviewing 

Senke, the District Court permitted him to proceed pro se, with 

the public defender as standby counsel.

Acting in a pro se capacity thereafter, Senke filed a 

plethora of pretrial motions, challenging the charges, the 

evidence, and his detention. The motions were denied. 

3 Senke was charged with violating 18 U.S.C. §§ 2423(b), 

2422(b), 1470. 
5

Following a conversation at a subsequent detention hearing, 

the District Court indicated that Senke agreed to accept 

appointed counsel. The District Court appointed a Criminal 

Justice Act attorney, Matthew T. Comerford, to represent 

Senke going forward.

 

i. Pretrial Complaints about Comerford

In April 2018, Senke filed a pro se motion titled, “Pro 

Se Omnibus Pre-Trial Motion” and “Inadequate 

Representation.”4

 In that motion, Senke asserted that 

Comerford, inter alia, (i) tried to pressure him to take a plea 

deal, (ii) did not take or return phone calls, (iii) refused to go 

over evidence, calling it “to[o] disgusting,” (iv) failed to turn 

over discovery to Senke, and (v) was not preparing a defense 

strategy for trial.5

 Senke also asserted that with Comerford as 

counsel, he “cannot get a fair and just trial.”6

 Senke did not, 

however, specifically request the appointment of new counsel.

 

The District Court took no action on this motion. 

Instead, Comerford filed a motion in July 2018, requesting that 

co-counsel be added to Senke’s defense team. The District 

Court granted the motion, appointing Comerford’s associate, 

Curt M. Parkins, to assist at trial.

A pretrial conference was held in August 2018. The

conference was attended by Comerford and Parkins, and the 

prosecutor, but not Senke. At the conference, Comerford

indicated that Senke was giving him “a hard time” about filing 

4 App. 315-17. 5 App. 316. 

6 App. 317.
6

additional pretrial motions.7

 Comerford stated, “I’m just 

letting you know he’s not happy with me that I am not filing 

more motions.”8

 The District Court responded, “[h]e doesn’t 

have much of a chance of losing you, right. You’re the second 

or third guy on this deal.”9

 

In apparent reference to Senke’s pretrial letter regarding 

counsel, Comerford stated, “[Senke is] putting in writing that I 

am not doing things.”10 This conversation prompted the 

prosecutor to ask, “He’s not trying to fire you, is he?”11 

Comerford responded, “[n]ot that I know of,” and Parkins

stated, “[j]ust difficult.”12 The hearing concluded without any 

further mention of Senke’s letter.

In the months leading up to trial, Senke did not submit

any additional requests or communications to the District 

Court regarding his defense team. Trial commenced on 

October 2, 2018 with Comerford and Parkins representing 

Senke. Defense counsel did not present any evidence, and 

relied solely on a defense of entrapment. The next day, the jury 

returned a guilty verdict on all counts. 

ii. Post-trial Complaints about Comerford

While awaiting sentencing, Senke filed three pro se

motions regarding counsel. The first motion, requested that 

7 App. 337. 8 App. 338. 

9 Id. 

10 App. 338-39.

11 App. 339 (alterations in original).

12 Id.
7

Comerford be substituted for “an appealant [sic] attorney.”13 

The second motion, informed the District Court that Senke sent 

a complaint to the Disciplinary Board and requested 

“substitution of counsel in regard to the above-mentioned 

matters.”14 The third motion, requested “a CJA Appealant

[sic] appointment by the Court.”15

The District Court denied the first and third motions in 

written orders. In denying the first motion, the District Court 

footnoted its understanding of Senke’s request for an 

“appealant [sic]” attorney as follows:

The deadline for defendant filing an appeal runs 

from the entry of judgment. Fed. R. App. P. 

4(b)(1) (“In a criminal case, a defendant’s notice 

of appeal must be filed in the district court within 

14 days after the later of ... the entry of either the 

judgment or order being appealed; or ... the 

filing of the government’s appeal.”) The 

judgment will be entered after defendant is 

sentenced. Upon appeal, the Third Circuit Court 

of Appeals has authority to appoint counsel for 

the defendant.16

In denying the third motion, the District Court stated that

Senke’s “pro se motion to substitute counsel for appellate 

reasons” was denied because “[t]he appeals court will deal with 

13 App. 637.

14 App. 638.

15 App. 642.

16 App. 641.
8

appointing defendant counsel for appeal purposes.”17 The 

District Court did not separately respond to the second motion.

iii. Sentencing

After the jury verdict, the District Court ordered a 

presentence investigation report (the “PSR”) to be filed. Senke 

submitted his own objections to the draft PSR, and Comerford

filed a sentencing memorandum on Senke’s behalf. The final 

PSR was filed, and an addendum was concurrently filed 

addressing Senke’s objections. As relevant on appeal, the 

District Court did not confirm at sentencing that Senke and 

Comerford had an opportunity to discuss the PSR together.

Sentencing was held on January 29, 2019. The final 

PSR provided a Guidelines imprisonment range of 168 to 210 

months. Prior to imposing the sentence, the District Court 

sustained an objection with respect to a five-level enhancement 

under U.S.S.G. § 4B1.5(b)(1) for repeat prohibited sexual 

conduct, and adjusted Senke’s total offense level from 35 to 

30. Because Count II carried a statutory mandatory minimum 

sentence of ten years’ imprisonment, the adjusted Guidelines 

range was 120 to 121 months. The District Court sentenced 

Senke to the mandatory minimum term and ten years of 

supervised release. Additionally, it imposed 17 special 

conditions of supervised release, including: 

1. You must submit to substance abuse testing to 

determine if you have used a prohibited 

substance;

17 App. 650.
9

6. You must not have direct contact with any 

child you know or reasonably should know to be 

under the age of 18, including your own children, 

without the permission of the probation officer;

7. You must not go to, or remain at, any place 

where you know children under the age of 18 are 

likely to be, including parks, schools, 

playgrounds, and childcare facilities; 

8. You must not go to, or remain at, a place for 

the primary purpose of observing or contacting 

children under the age of [18];

10. You must submit to periodic polygraph 

testing at the discretion of the probation officer 

as a means to ensure that you are in compliance 

with the requirements of your supervision or 

treatment program; 

11. You must not possess and/or use computers . 

. . or other electronic communications or data 

storage devices or media; 

12. You must not access the Internet except for 

reasons approved in advance by the probation 

officer;

13. You must allow the probation officer to 

install computer monitoring software on any 

computer . . . you use;

14. To ensure compliance with the computer 

monitoring condition, you must allow the 
10

probation officer to conduct initial and periodic 

unannounced searches of any computers . . . 

subject to computer monitoring;

15. You must submit your person, property, 

house, residence, vehicle, papers, computers . . . 

other electronic communications or data storage 

devices or media, or office, to a search conducted 

by a United States probation officer.18

Senke was also ordered to pay a special assessment fee of 

$10,000 under the Justice for Victims of Trafficking Act of 

2015 (the “JVTA”).

19 This appeal followed.

II. JURISDICTION

The District Court had subject matter jurisdiction over 

this criminal case pursuant to 18 U.S.C. § 3231. We have 

appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 

3742(a). The District Court entered its judgment on January 

30, 2019, and a timely notice of appeal was filed on February 

1, 2019.

18 App. 13-14, 665-67. 

19 18 U.S.C. § 3014
11

III. DISCUSSION

Senke raises four issues on appeal: (1) the District 

Court’s failure to inquire into his motions regarding counsel; 

(2) the District Court’s failure to verify that he and his attorney 

discussed the PSR before sentencing; (3) the imposition of 

contradictory, vague, excessively delegative, or overbroad 

conditions of supervised release; and (4) the imposition of a

special assessment fee pursuant to a statute enacted after the 

offense conduct. We address each in turn.

A. The Failure to Inquire

Senke’s primary argument is that the District Court 

erred in not inquiring into his motions regarding counsel. We 

review a district court’s decision on a motion for appointment 

of counsel for abuse of discretion.20 The Sixth Amendment 

guarantees that “[i]n all criminal prosecutions, the accused 

shall enjoy the right . . . to have the Assistance of Counsel for 

his defence.”21 As relevant here, indigent defendants are

permitted to request the appointment of new counsel, or to 

proceed pro se, if they are unhappy with their current courtappointed attorney.

22

If a defendant requests substitute counsel, the court 

must evaluate whether the defendant’s justification for seeking 

new counsel is based on “good cause” to “justify a continuance 

20 See United States v. Gibbs, 190 F.3d 188, 207 n.10 (3d Cir. 

1999).

21 U.S. Const. amend. VI. 

22 See United States v. Welty, 674 F.2d 185, 187 (3d Cir. 1982).
12

of the trial in order to allow new counsel to be obtained.”23 We 

have explained that good cause can be “a conflict of interest, a 

complete breakdown of communication, or an irreconcilable 

conflict with the attorney.”24 “[T]he district court must engage 

in at least some inquiry as to the reason for the defendant’s 

dissatisfaction with his existing attorney” to determine whether 

the defendant has shown good cause.

25

We recently addressed the issue of a court’s failure to 

inquire into a motion for substitute counsel in United States v. 

Diaz.

26 There, the indigent criminal defendant wrote to the 

District Court five times before trial regarding issues with 

appointed counsel. Despite not specifically requesting new 

counsel in the first two communications, the District Court 

ordered defendant’s attorney to respond to the letters. The 

attorney did not do so. On the third attempt, defendant stated, 

“I am requesting that you consider appointing me new 

counsel.”27 The District Court took no action. Instead, one 

month later, defendant’s attorney filed a motion for 

continuance in which he represented that all issues between 

counsel and defendant were resolved. Counsel and defendant 

then appeared together at a pretrial conference, and neither 

raised any issues involving representation. Nevertheless, 

23 Id.

24 United States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir. 

1995). 25 Welty, 674 F.2d at 187; see also Martel v. Clair, 565 U.S. 

648, 664 (2012) (“As all Circuits agree, courts cannot properly 

resolve substitution motions without probing why a defendant 

wants a new lawyer.”).

26 951 F.3d 148 (3d Cir. 2020). 

27 Id. at 153.
13

defendant wrote to the District Court two more times before 

trial raising similar concerns. But, defendant did not renew his 

request for new counsel in either of these letters. The case 

proceeded to trial without further inquiry. 

In finding no abuse of discretion, we noted that “the 

District Court may not have been as attentive to [defendant’s] 

complaints regarding his counsel as it should have been,” but 

that soon after defendant’s request, the District Court “had 

good reason to believe [the attorney] was communicating with 

[defendant] such that [defendant’s] request was withdrawn or 

moot.”28 We explained that the information the District Court 

received in the motion for continuance made it clear that the 

attorney was paying attention to defendant’s requests, and 

intervention was unnecessary. Thus, Diaz presented “a unique 

circumstance,” and the “District Court’s inaction would . . . 

normally raise serious questions.”29

Turning to the case at hand, we are yet again presented 

with a claim of a district court’s inaction. The Government 

argues that because Senke did not explicitly request substitute 

counsel in his pretrial motion, the District Court was under no 

obligation to act. This places an inappropriately strict 

requirement on pro se defendants to know the law and 

articulate the exact action they desire from the court.30 And 

28 Id. at 152, 155. 

29 Id. at 155.

30 Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011) 

(explaining that our “policy of liberally construing pro se

submissions is driven by the understanding that . . . [there] is 

an obligation on the part of the court to make reasonable 

allowances to protect pro se litigants from inadvertent 
14

Diaz suggests that district courts should at least attempt to 

inquire further when made aware of a possible breakdown in 

communication.31 Moreover, we have said that a 

communication breakdown could be sufficient for a good 

cause finding, and we have not made such a finding contingent 

on the filing of a clearly articulated motion.32 Here, the District 

Court was made aware of a potential breakdown in 

communication.

Similar to the defendant in Diaz, Senke submitted a 

communication to the District Court in which he complained 

about his attorney, but he stopped short of asking for substitute 

counsel. The communication raised serious issues, including 

that Comerford was not preparing for trial and had called the 

evidence “to[o] disgusting” to review with Senke.33 This alone 

gives us pause as to the District Court’s inaction. But then at a 

pretrial conference, Comerford brought the strained 

relationship to the District Court’s attention. Referencing 

Senke’s pretrial motion, Comerford explained that the conflict

stemmed from his refusal to file additional pretrial motions, 

and Senke’s insistence that he do so. Of course, an attorney is 

not required to take every action that his client desires.34 But 

forfeiture of important rights because of their lack of legal 

training”) (internal quotation marks and citations omitted). 

31 Diaz, 951 F.3d at 155 (“It is clear that the Court was aware 

of [defendant’s] concerns, and it took some action to remedy 

the situation when it ordered [the attorney] to file a response to 

[defendant’s] [first] letter.”).

32 See Welty, 674 F.2d at 188. 33 App. 316. 

34 See Taylor v. Illinois, 484 U.S. 400, 418 (1988) (“The 

adversary process could not function effectively if every 
15

this conversation, coupled with Senke’s letter raising alarming 

concerns, should have indicated to the District Court that 

further inquiry was necessary. 

In Diaz, we cautioned that “[a]lthough the requisite 

inquiry may consider a variety of sources and need not include 

a one-on-one colloquy with the defendant,” we must also 

consider “the importance of allowing the defendant, as well as 

counsel, the opportunity to be heard on the matter.”35 We 

further warned that “if a district court fails to make ‘any onthe-record inquiry as to the reasons for the defendant’s 

dissatisfaction with his existing attorney,’ it abuses its 

discretion.”36

 

Here, the District Court neither allowed Senke the 

opportunity to clarify his communication, nor made any 

searching inquiry on the record that would satisfy us that it had 

deduced the reasons for Senke’s dissatisfaction. Indeed, at the 

pretrial conference, which Senke was not a part of, the only 

colloquy regarding the meaning of Senke’s communication 

occurred between defense counsel and the prosecutor. 

Heeding our warnings in Diaz, we are not convinced that based 

tactical decision required client approval.”); see also Gonzalez 

v. United States, 553 U.S. 242, 248-50 (2008). 

35 951 F.3d at 154; see United States v. Hodge, 870 F.3d 184, 

202 (3d Cir. 2017) (“[B]y only gathering information from 

counsel whom a defendant wishes to reject, but not the 

defendant himself, a trial court creates some risk of 

overlooking some latent, legitimate reason for substitution that 

is not articulable by his counsel.”). 

36 Diaz, 951 F.3d at 154 (citing McMahon v. Fulcomer, 821 

F.2d 934, 944 (3d Cir. 1987)). 
16

on perfunctory exchanges at one pretrial conference where (i) 

the defendant was not present, and (ii) the District Court 

conducted no further inquiry, the District Court had “good 

reason to believe” that Comerford and Senke were 

communicating again before trial.37 Moreover, Senke

reiterated his concerns regarding Comerford’s lack of 

communication in his post-trial motions. He also raises the 

issue before us, where there is a question of whether 

Comerford reviewed the PSR with Senke. It seems then, these

communication issues were not resolved, and we see no reason 

for the District Court to believe that they were before trial. For 

these reasons, we are persuaded that the District Court’s failure 

37 Diaz, 951 F.3d at 155; see also McMahon, 821 F.2d at 942-

44 (holding that trial court erred by denying defendant’s 

request for a continuance to obtain new counsel based “upon 

counsel’s communication that he knew of no reasonable basis 

for his discharge . . . without engaging in any on-the-record 

inquiry as to the reasons for the defendant’s dissatisfaction 

with his existing attorney.”). It is worth noting that the District 

Court’s comment that Senke “doesn’t have much of a chance 

of losing” Comerford because he was “the second or third guy 

on this deal,” is irrelevant to our analysis. App. 338. We have 

been clear that the obligation to inquire is in no way dependent 

on the number of requests a defendant has made, nor the 

number of attorneys that have represented a defendant. See 

Diaz, 951 F.3d at 154-55; McMahon, 821 F.2d at 942 (“Even 

when the trial judge suspects that the defendant's contentions 

are disingenuous, and motives impure, a thorough and 

searching inquiry is required.”). And these comments do not 

suggest that the District Court reviewed and considered 

Senke’s motion. 
17

to inquire into Senke’s pretrial motion was an abuse of 

discretion. 

Finding error, we must evaluate its impact and proper 

remedy.38 This analysis is contingent upon the right implicated 

38 Our dissenting colleague points to dicta in Martel suggesting 

that the Court of Appeals in that case had “ordered the wrong 

remedy even assuming the District Court had abused its 

discretion in denying [the habeas petitioner’s] substitution 

motion without inquiry.” Martel, 565 U.S. at 666 n.4; see also

dissent at page 15. The Supreme Court there noted that had the 

Court of Appeals correctly determined that the district court 

abused its discretion in declining to evaluate the petitioner’s 

request for new counsel, it should have “remand[ed] to the 

District Court to decide whether substitution was appropriate 

at the time of [petitioner’s] letter. Unless that court determined 

that counsel should have been changed, the Court of Appeals 

had no basis for vacating the denial of [petitioner’s] habeas 

petition.” Martel, 565 U.S. at 666 n.4. Our dissenting

colleague argues we should remand here for the same purpose, 

and that Martel “rejected the functional equivalent of a 

prejudice standard, too.” Dissent at page 15 n.66. But this 

reads too much into the Supreme Court’s suggestion. The 

language our colleague cites for the rejection pertains to the 

separate question of what a capital habeas petitioner must show 

to substitute counsel under 18 U.S.C. § 3599. See Martel, 565 

U.S. at 656-63. The Supreme Court held the same “interests 

of justice” standard on motions to substitute counsel in noncapital criminal cases should also apply to capital habeas 

petitioners seeking new counsel. Id. at 660, 663. The Court 

did not address whether a defendant who had a substitution 

motion wrongfully denied would have to demonstrate 
18

by Senke’s claim. Senke asserts that the failure to inquire into 

a defendant’s dissatisfaction with appointed counsel is 

structural error—meaning reversal is required regardless of 

whether the defendant can show prejudice or harm. But he is 

confusing his right to any counsel with his right to effective 

counsel. These rights are distinct, and so, too, is our analysis 

of each.

 

The cases Senke and the dissent rely on for the assertion 

of structural error involved defendants that sought substitution 

of counsel on the eve of trial, had their request denied, and 

therefore were forced to choose between going to trial pro se 

or with counsel they were dissatisfied with.39 Where a 

defendant then elects to proceed pro se, he or she must 

knowingly and voluntarily waive the right to any counsel.40 

This requires the district court to conduct an analytically 

distinct inquiry “guaranteeing that the defendant understands 

what he is giving up, that he is ‘made aware of the dangers and 

disadvantages of self-representation.’”41 In these cases, it was 

the failure to conduct this separate inquiry that required 

prejudice. But its suggestion that remand would be necessary 

even if the Court of Appeals concluded that the district court 

abused its discretion by not inquiring into the basis for the 

substitution motion suggests that the failure to inquire into 

dissatisfaction with counsel, without more, is not structural 

error. 

39Welty, 674 F.2d at 187; Goldberg, 67 F.3d at 1096; 

McMahon, 821 F.2d at 936-37. 40 Welty, 674 F.2d at 190. 

41 Id. (quoting Faretta v. California, 422 U.S. 806, 835 (1975)). 
19

reversal, not an inadequate inquiry into the reasons for a 

defendant’s dissatisfaction with counsel.42

To be certain, if Senke were asserting that his right to

retained counsel of choice was violated, such deprivation 

would be structural error.43 The same would be true if he were 

42 Welty, 674 F.2d at 194 (“Because this record does not 

disclose that Welty effectively waived his constitutional right 

to counsel, we are obliged to reverse his conviction.”); 

Goldberg, 67 F.3d at 1099, 1102 (finding “no abuse of 

discretion in the denial of the continuance” to seek retained 

counsel, but vacating conviction because “the district court 

failed to inform Goldberg of the risks of self-representation in 

accordance with Faretta and Welty.”); McMahon, 821 F.2d at 

946 (“[W]e hold that the trial court failed properly to determine 

whether McMahon’s waiver of his sixth amendment right of

counsel was knowing and intelligent.”). McMahon made this 

point particularly clearly, holding that it would have reversed 

the petitioner’s conviction in that case “even if [the court] were 

to have found the trial judge’s denial of petitioner’s 

continuance motion [to seek new retained counsel] proper.” 

821 F.2d at 944. The dissent also misreads the rationale of 

these decisions. They did not require reversal because “the 

defendants were forced to choose between representing 

themselves and counsel that they had lost faith in.” Dissent at 

page 12. This Court reversed because they had not effectively 

waived their right to counsel. 

43 See United States v. Gonzalez-Lopez, 548 U.S. 140, 148-52

(2006) (affirming Eighth Circuit’s reversal of conviction where 

defendant was deprived of his right to paid counsel of his

choosing); see also United States v. Rankin, 779 F.2d 956, 960-

61 (3d Cir. 1986) (vacating and remanding for new trial where 
20

asserting that he was denied the right of self-representation.44 

This is because a choice-of-counsel violation or a selfrepresentation violation occurs at the moment the defendant’s 

choice is wrongfully denied.45 But the Supreme Court has 

been careful to distinguish these rights from the right to 

effective assistance of counsel.

The right to effective counsel is derived from the 

guarantee of a fair trial in the Due Process Clause, and the 

elements of a fair trial are defined through the Sixth 

Amendment.46 The Sixth Amendment recognizes the right to 

effective assistance “because it envisions counsel’s playing a 

role that is critical to the ability of the adversarial system to 

produce just results.”47 Accordingly, “[a]n accused is entitled 

to be assisted by an attorney, whether retained or appointed, 

who plays the role necessary to ensure that the trial is fair.”48 

A violation of the right to effective counsel requires a showing 

district court refused to continue trial date, forcing defendant 

to proceed to trial with appointed counsel when his retained 

counsel of choice was unavailable). 

44 See McKaskle v. Wiggins, 465 U.S. 168, 177-78 n.8 (1984).

45 See Gonzalez-Lopez, 548 U.S. at 150. 

46 Id. at 146 (citing Strickland v. Washington, 466 U.S. 668, 

684-85 (1984)). 

47 Strickland, 466 U.S. at 685; see Gonzalez-Lopez, 548 U.S. at 

147 (explaining that “[t]he earliest case generally cited for the 

proposition that ‘the right to counsel is the right to the effective 

assistance of counsel,’ . . . was based on the Due Process 

Clause rather than on the Sixth Amendment[.]” (citing 

McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970))). 

48 Strickland, 466 U.S. at 685.
21

of prejudice, because “[c]ounsel cannot be ineffective unless 

his mistakes have harmed the defense[.]”49

By contrast, the right to counsel—including, inter alia, 

the right to counsel of choice and the right to selfrepresentation—“has never been derived from the Sixth 

Amendment’s purpose of ensuring a fair trial.”50 Rather, such 

rights are “the root meaning of the constitutional guarantee.”51 

The deprivation of these rights qualifies as structural error 

because, in part, the consequences “‘are necessarily 

unquantifiable and indeterminate.’”52 The Supreme Court has 

expressed a reluctance to expand the narrow category of rights 

that qualify for per se reversal.53

 

Here, Senke’s claim does not fall into one of the 

established categories of structural error. He has not asserted 

49 Gonzalez-Lopez, 548 U.S. at 147 (internal quotation marks 

omitted). 

50 Id. at 147-48; see Faretta, 422 U.S. at 819-21. 

51 Gonzalez-Lopez, 548 U.S. at 147-48.

52 Gonzalez-Lopez, 548 U.S. at 150 (quoting Sullivan v. 

Louisiana, 508 U.S. 275, 282 (1993)). 53 See generally, Mickens v. Taylor, 535 U.S. 162, 173-74 

(2002) (limiting automatic reversal rule established in 

Holloway v. Arkansas, 435 U.S. 475 (1978) and holding that to 

demonstrate a Sixth Amendment violation where trial court 

failed to inquire into potential conflict of interest, defendant 

had to establish conflict adversely affected counsel’s 

performance); see id. at 166 (collecting cases “where 

assistance of counsel has been denied entirely or during a 

critical stage of the proceeding[,]” sparing the defendant from 

the need to show effect on the outcome of trial). 
22

that he was deprived of his right to counsel of choice. Indeed, 

he cannot, because the right to choose one’s own counsel does 

not extend to defendants who require appointed counsel.

54 

And he has not claimed that he was somehow deprived of his 

right to knowingly and intelligently represent himself.55 Nor 

has Senke claimed that Comerford had any conflict of 

interest,

56 or that he was so “embroiled in irreconcilable 

conflict” with Comerford that he was deprived “of the effective 

assistance of any counsel whatsoever,” as some of our sister 

circuits have examined.57 Despite his earlier misgivings with 

counsel, Senke proceeded to trial with the assistance of 

Comerford. He therefore cannot also claim that he was denied 

the right to any counsel at all.

54 See Gonzalez-Lopez, 548 U.S. at 151; Caplin & Drysdale, 

Chartered v. United States, 491 U.S. 617, 626 (1989).

55 Cf. Faretta, 422 U.S. at 835.

56 Goldberg, 67 F.3d at 1098. 

57 Compare United States v. Smith, 640 F.3d 580, 590 (4th Cir. 

2011) (quoting Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 

1970)), with United States v. Wallace, 753 F.3d 671, 675 (7th 

Cir. 2014) (“If communication with the defendant’s counsel 

broke down as a result of neglect or ineptitude by counsel, the 

defendant may have a claim of ineffective assistance of 

counsel, but to prove that he would have to present evidence.”) 

and United States v. Smoot, 918 F.3d 163, 169 (D.C. Cir. 2019) 

(“A defendant challenging the denial of a motion to substitute 

counsel must show that he was not ‘afforded effective 

representation’ in order to show that denial of the motion was 

prejudicial.” (quoting United States v. Graham, 91 F.3d 213, 

221 (D.C. Cir. 1996))). 
23

Instead, it is possible to examine the record for 

identifiable mistakes and assess whether those mistakes 

affected the outcome of his trial.58 Senke’s claim is therefore

more appropriately viewed as one for ineffectiveness, which 

must be reviewed for prejudice. The wrinkle, though, is that 

Senke has not attempted to show prejudice in this direct appeal. 

And the District Court has not yet evaluated the matter. This 

is why, generally, we do not review claims of ineffectiveness 

on direct appeal and prefer that they be raised through a habeas

corpus proceeding.

59 Accordingly, although the District Court

failed to inquire into Senke’s complaints about counsel, we 

conclude that we cannot grant Senke relief on this claim as it 

is presently framed. We note that our disposition is without 

prejudice to Senke’s ability to bring a claim under 28 U.S.C. 

§ 2255.60 

58 See Gonzalez-Lopez, 548 U.S. at 150. 

59 See United States v. DeRewal, 10 F.3d 100, 103-04 (3d Cir. 

1993). 

60 There is some support for our holding from our sister 

circuits. For example, the First Circuit in United States v. 

Mota-Santana, 391 F.3d 42, 45-46 (1st Cir. 2004), rejected a 

defendant’s contention that there was a conflict of interest 

requiring reversal where counsel was ordered to respond to his 

client’s expressions of dissatisfaction. It explained that 

[w]ere disagreements between attorney and 

client to be treated in the same manner as 

[conflict of interest cases]—with resulting 

possible per se reversal without the necessity of 

proving prejudice—the nature of appeals in 

criminal cases would be dramatically altered. 

The odds are that many an unsuccessful 
24

defendant would be found nursing some 

disagreement with counsel.

Id. at 46. Likewise supporting a showing of prejudice, the 

Second Circuit observed in United States v. Doe #1, 272 F.3d 

116, 123 (2d Cir. 2001), that “if the reasons proffered [in a 

substitution motion] are insubstantial and the defendant 

receives competent representation from counsel, a court’s 

failure to inquire sufficiently or to inquire at all constitutes 

harmless error.” Cf. United States v. Morrissey, 461 F.2d 666, 

670 (2d Cir. 1972) (indicating a reluctance to reverse even 

where defendant raised serious issues with counsel, and 

ultimately affirming because defendant’s contentions were 

incorrect or subsequently cured, but noting that “[w]ithout 

more, [the trial judge’s] failure to inquire, in our view, would 

constitute error sufficient for reversal of the judgment of 

conviction.”). Similar to the holding in United States v. Doe 

#1, the Eighth Circuit in United States v. Jones, 795 F.3d 791, 

797 (8th Cir. 2015), found no abuse of discretion where the 

magistrate judge denied defendant’s substitution motion 

without inquiry because the motion contained all of the 

information the court needed to make a ruling. In so finding, 

the Eighth Circuit explained that even if a trial court abuses its 

discretion, “the Sixth Amendment does not require an 

automatic reversal of the conviction.” Id. at 796 (citing Martel,

565 U.S. at 666 n.4 (reviewing renewed motion for substitution 

of appointed counsel in federal habeas corpus proceeding, and 

noting that the Ninth Circuit ordered the wrong remedy even if 

the district court abused its discretion because “[t]he way to 

cure that error would have been to remand to the District Court 

to decide whether substitution was appropriate at the time of 

[defendant]’s letter.”)). Even the Ninth Circuit, though 
25

As to Senke’s post-trial motions for new counsel, we 

conclude that the District Court did not abuse its discretion by 

not appointing substitute counsel for sentencing purposes. 

Senke stated multiple times in his post-trial motions that he 

was requesting “appealant [sic]” counsel. The District Court 

reasonably understood this to be a request for appellate

counsel.

61 Accordingly, it was not error for it to conclude that 

any action on its part was moot. 

B. The Failure to Verify 

Senke next argues that the District Court failed to 

comply with Federal Rule of Criminal Procedure 32(i)(1)(A), 

which provides that “[a]t sentencing, the court: (A) must verify 

that the defendant and the defendant’s attorney have read and 

discussed the presentence report and any addendum to the 

previously supporting automatic reversal, see Craven, 424 

F.2d at 1170, has reinforced that unless there is a constructive 

denial of counsel, defendant must show prejudice. Schell v. 

Witek, 218 F.3d 1017, 1026-28 (9th Cir. 2000) (en banc) 

(reversing, in part, district court’s denial of defendant’s 

petition for a writ of habeas corpus and remanding for 

evidentiary hearing to determine the nature and extent of the 

conflict between defendant and his attorney and whether that 

conflict deprived defendant of adequate representation); see 

United States v. Musa, 220 F.3d 1096, 1102-03 (9th Cir. 2000) 

(vacating sentence and remanding for a hearing on the nature 

of the conflict between defendant and his attorney, and 

instructing that “[i]f, after a thorough inquiry, the district court 

finds no breakdown in communication that prevented an 

adequate defense, it may reinstate the sentence.”). 

61 See App. 641; 650. 
26

report.”62 Because this issue was unpreserved, Senke must 

show plain error.63 Under the plain error standard, we may 

vacate and remand Senke’s sentence only if we find (1) an error 

was committed; (2) the error was plain; and (3) the error 

affected Senke’s substantial rights.

64

 

In interpreting Rule 32(i)(1)(A), we have declined to 

create “an absolute requirement that the court personally ask 

the defendant if he has had the opportunity to read the report 

and discuss it with counsel.”65 Instead, we have “allowed for 

a more functional fulfillment of the rule, requiring only that the 

district court ‘somehow determine that the defendant has had 

this opportunity,’” “before imposing sentence.”66

 

Here, the District Court did not verbally ask Senke if he 

read and discussed the PSR with his attorneys. The question,

then, is whether the District Court could have independently 

determined that information before sentencing. 

The Government asserts that “it is clear from the record 

that both [Comerford] and Senke had an opportunity to read 

the PSR as both filed specific objections.”67 That is true. 

Comerford submitted a sentencing memorandum to the District 

62 Fed. R. Crim. P. 32(i)(1)(A). 

63 United States v. Olano, 507 U.S. 725, 734 (1993).

64 Id. at 732-34. 

65 United States v. Mays, 798 F.2d 78, 80 (3d Cir. 1986). 

66 United States v. Stevens, 223 F.3d 239, 241 (3d Cir. 2000) 

(quoting Mays, 798 F.2d at 80). At the time of Stevens, the 

Rule 32(i)(1)(A) requirement was codified as Rule 

32(c)(3)(A).

67 Gov’t Br. 33.
27

Court, wherein he successfully argued that the PSR improperly 

enhanced Senke’s offense level. Separately, Senke submitted 

his own objections, which were addressed in an addendum to 

the PSR.

However, nowhere in the sentencing memorandum does 

it state that Comerford and Senke discussed the PSR together. 

Moreover, Comerford submitted his objection to the probation 

officer before receiving Senke’s objections. At sentencing, 

Comerford only mentioned the objection made in the 

sentencing memorandum, and did not reference any of 

Senke’s. While that may have been because Senke’s 

objections lacked merit, we cannot conclude that Comerford’s 

silence indicates he reviewed the objections or discussed them 

with Senke. Nor does the District Court’s recitation of Senke’s 

objections and the one made in the sentencing memorandum 

indicate that it determined Senke had the opportunity to discuss 

the PSR with counsel. Instead, these facts only confirm that 

Senke and Comerford read the PSR, but they suggest nothing 

about a meeting of the minds. 

Finding plain error, we turn to the issue of Senke’s 

substantial rights. For substantial rights to have been affected, 

“the error must have been prejudicial,” in that it “affected the 

outcome of the district court proceedings.”68

Senke asserts that if the District Court had asked if he 

discussed the PSR with counsel, he could have challenged the 

recommendation of certain special conditions of supervised 

release, and the recommendation of the $10,000 special 

assessment fee under the JVTA. These arguments are 

68 Olano, 507 U.S. at 734. 
28

unconvincing. Neither of these matters could have affected 

Senke’s criminal history category, nor the applicable 

Guidelines range.69 Moreover, Senke was sentenced to the 

statutory mandatory minimum; thus “there is no reasonable 

likelihood that the sentence would have been different,” had 

the District Court verified a PSR discussion took place.70 

Accordingly, Senke’s Rule 32(i)(1)(A) claim must fail.71

C. The Special Conditions of Supervised Release

Next, Senke takes issue with several special conditions 

of supervised release imposed by the District Court. Because 

this challenge was unpreserved, Senke must show plain error.72

 

Each special condition must be reasonably related in a 

“tangible way,” to the defendant's crimes or something in his 

history, and it must involve no greater deprivation of liberty 

than is reasonably necessary to deter future crime, protect the 

public, or rehabilitate the defendant.73 “This is not an 

especially high standard.”74 But the sentencing court must set 

forth factual findings to justify the special conditions.75 If the 

69 See Stevens, 223 F.3d at 244.

70 Id.

71 We stress the importance and relative ease of satisfying a 

Rule 32(i)(1)(A) verification on the record at sentencing. A 

very simple colloquy between defendants and district courts 

would remove all doubt. 

72 See United States v. Pruden, 398 F.3d 241, 248 (3d Cir. 

2005).

73 Id. at 248-49 (internal quotation marks and citation omitted).

74 Id. at 249. 

75 United States v. Voelker, 489 F.3d 139, 144 (3d Cir. 2007). 
29

court fails to do so, we may nevertheless affirm “if we can 

ascertain any viable basis” for the condition.76

i. Conditions on Computer and Internet 

Usage

Senke argues that the conditions relating to his internet 

and computer usage are contradictory and more restrictive than 

necessary. Specifically, he notes that Condition 11 instructs 

that he “must not possess and/or use computers . . . or other 

electronic communications or data storage devices or media.”77

Yet Conditions 12-15 require him to obtain permission from 

his probation officer to use the internet, have monitoring 

software installed on any computer he uses, and submit to 

searches of his computers, electronic communications, and 

data storage devices.78

 

The Government concedes that Conditions 11-15 are 

contradictory and require further clarification by the District 

Court. We agree. These conditions are indistinguishable from 

the conditions we struck down in United States v. Holena.

79 

There, we carefully laid out the considerations a sentencing 

court must give when balancing public protection against 

broad, untailored restrictions on a defendant’s liberty.80 We 

76 Id. at 144 (internal quotation marks and citation omitted). 

77 App. 13.

78 App. 13-14. 

79 906 F.3d 288 (3d Cir. 2018). 

80 Id. at 291-94 (“To gauge whether an internet or computer 

restriction is more restrictive than necessary, we consider three 

factors: the restriction’s length, its coverage, and ‘the 
30

noted that “internet bans are ‘draconian,’” particularly in a 

modern society, where one can hardly complete menial tasks 

without using a computer or the internet.81 As such, the goal 

of restricting internet and computer use for defendants like 

Senke must be to keep them from preying on children. For the 

reasons explained in Holena, there is no such tailoring here. 

Conditions 11-15, as currently written, prevent Senke from 

participating in all sorts of activities, while doing nothing to 

further public safety.82

On remand, the District Court must “make findings to 

support any restrictions it chooses to impose on [Senke’s] 

internet and computer use.”83 Undoubtedly, there is a strong 

need to protect the public, and the District Court may still find 

it appropriate to limit Senke’s internet and computer use.84 But 

any limitations must be supported by facts, tailored to Senke’s 

conduct, and “aim to deter future crimes, protect the public, or 

rehabilitate [Senke].”85

ii. Conditions on Contact with Minors 

defendant’s underlying conduct.’” Id. at 292 (quoting United 

States v. Heckman, 592 F.3d 400, 405 (3d Cir. 2010))). 

81 Id. at 292 (quoting Heckman, 592 F.3d at 408). 

82 See id. at 294-95 (noting that a complete ban on computer 

and internet use raises First Amendment concerns because it 

restricts an array of activity, without making the public safer). 

83 Id. at 291. 

84 Id. at 293 (“We recognize that the need to protect the public 

is strongest in cases like this, when the defendant used the 

internet to try to molest children.”). 

85 Id. 
31

Senke also contends that Conditions 6 and 7, regulating 

his contact with minors, are contradictory. Condition 7 bans 

Senke from going to or remaining at any place where children 

“are likely to be.”86 Yet Condition 6 requires him to obtain 

permission from the probation officer in order to have direct 

contact with children.87 He also argues that Condition 7 is 

overbroad and unnecessary in light of Condition 6, when the 

record shows that he was not seeking out children and had no 

prior sexual interest in children. 

The Government responds that Condition 6 prohibits 

“direct” contact with minors without prior permission from a 

probation officer, while Condition 7 prohibits intentional travel

to and/or remaining at places where minors frequent and are 

likely to congregate. 

We agree with the Government’s reasoning; Conditions 

6 and 7 are not contradictory or overbroad. As the Government 

explains, Condition 6 requires Senke to receive permission 

from a probation officer before having direct contact with a 

minor, regardless of location. Condition 7 prevents him from 

traveling to places where minors are likely to be, even if he

does not intend to have direct contact with any minors. For 

additional clarity, Condition 7 provides examples on the types 

of places it encompasses. These conditions are appropriately 

tailored to Senke’s crime, and are not so contradictory or 

overbroad that Senke “cannot tell what they forbid.”88 

Senke also complains that Conditions 7 and 8 are 

86 App. 13. 87 Id.

88 Holena, 906 F.3d at 291. 
32

unconstitutionally vague. He argues that reasonable people 

could disagree about whether children are “likely to be” at a 

variety of places, and there is no guidance as to how he or his 

probation officer should determine his “primary purpose” for 

going to a particular location.89

We previously upheld an arguably stricter condition that 

restricted any unsupervised contact with minors in a case 

where the defendant was convicted solely of possessing child 

pornography.90 In doing so, we determined that the prohibition 

against unsupervised contact was not unconstitutionally vague 

because it did not foreclose accidental contact.91 Similarly, the 

Second and Fifth Circuits have routinely upheld special 

conditions that banned defendants from areas where children 

“frequent” or “congregate.”92 The same is true of provisions 

89 App. 13.

90 United States v. Loy, 237 F.3d 251, 254 (3d Cir. 2001).

91 Id. at 269 (“At this point, it is well established that 

associational conditions do not extend to casual or chance 

meetings.”). 

92 See United States v. Fields, 777 F.3d 799, 806 (5th Cir. 2015)

(upholding a condition that prohibited defendant from going to 

places “where a minor or minors are known to frequent” and 

defining those “places” to include schools and playgrounds, 

but not locations such as grocery stores, places of worship, 

transportation hubs, and most stores); United States v. 

MacMillen, 544 F.3d 71, 73, 75-76 (2d Cir. 2008) (upholding

a condition prohibiting the defendant from being in “any” area 

where children are “likely” to congregate because “[t]he 

condition challenged here provides [defendant] with adequate 

notice of what conduct is prohibited—namely, frequenting 

places where children are likely to congregate.”); United States 
33

that include anti-loitering language similar to that of Condition 

8.93

Here, neither Conditions 7 nor 8 bar accidental contact 

that could occur during ordinary activities in public places. 

These conditions are tangibly related to Senke’s conviction, 

where he attempted to entice a minor to meet him in a public 

place for the purposes of sexual contact. Moreover, their 

wording is not so vague that “men of common intelligence 

must necessarily guess at [their] meaning and differ as to [their] 

application.”94

iii. Conditions Relating to Testing 

v. Johnson, 446 F.3d 272, 280-81 (2d Cir. 2006) (upholding a 

provision of supervised release that prohibited the defendant 

from being in “any” area where children are “likely” to 

congregate); United States v. Paul, 274 F.3d 155, 165-67 n.13 

(5th Cir. 2001) (denying a vagueness challenge to a condition 

instructing defendant to avoid “places, establishments, and 

areas frequented by minors,” finding that this direction may be 

reasonably interpreted and enforced). 

93 See United States v. Oliphant, 456 F. App’x 456, 458-59 (5th 

Cir. 2012) (per curiam) (upholding against vagueness 

challenge condition stating that defendant “shall not have 

access to or loiter near school grounds”); United States v. 

Burroughs, 613 F.3d 233, 246 n.3 (D.C. Cir. 2010) (upholding 

against vagueness challenge condition barring defendant from 

“loiter[ing] in any place where children congregate”).

94 United States v. Maloney, 513 F.3d 350, 357 (3d Cir. 2008).
34

Senke contends that Conditions 1 and 10 delegate 

excessive authority to his probation officer by requiring him to 

take an unlimited number of drug and polygraph tests. 

District courts may not delegate to probation officers 

the power to “decide the nature or extent” of supervised release 

conditions.95 But we have held that “probation officers must 

be allowed some discretion in dealing with their charges,” as 

“courts cannot be expected to map out every detail of a 

defendant’s supervised release.”96 In the context of mental 

health intervention, we determined that if a defendant is 

required to participate in intervention “only if directed to do so 

by his probation officer,” then this is an impermissible 

delegation of judicial authority.97

Here, the probation officer was instructed by the District 

Court to subject Senke to drug and polygraph testing. While 

the probation officer may decide the time, place and frequency 

of such testing, the testing is not optional. Senke is required to 

participate in order to comply with the District Court’s 

conditions. Because the District Court has merely delegated to 

the probation officer the details with respect to “selection and 

schedule” of the testing, such delegation is proper.98 

D. The JVTA Special Assessment Fee

95 Pruden, 398 F.3d at 250.

96 Id.

97 Id. at 250-51 (quoting United States v. Peterson, 248 F.3d 

79, 85 (2d Cir. 2001)). 

98 Id.
35

Lastly, Senke argues that the District Court erred by 

imposing a $10,000 special assessment under the JVTA.99 He 

contends that because the JVTA was enacted on May 29, 2015, 

and he was charged with offenses committed between 

September 2014 and February 2015, this assessment violates 

the Ex Post Facto Clause. The Government concedes that the 

fee imposition was plain error. We agree and will vacate the 

fee.

IV. CONCLUSION

For the foregoing reasons, we will vacate the District 

Court’s judgment as to its imposition of special Conditions 11-

15 regarding Senke’s internet and computer use and a special 

assessment fee under the JVTA and remand for further 

proceedings. We will otherwise affirm the District Court’s 

judgment as to Senke’s conviction and sentence.

99 18 U.S.C. § 3014. 
1

McKEE, concurring in part and dissenting in part.

The Majority correctly concludes that “the district 

court’s failure to address Senke’s complaints regarding his 

counsel was an abuse of discretion under our precedent in 

United States v. Diaz.”

1 However, my colleagues incorrectly 

conclude that relief is conditioned upon Senke demonstrating 

that he was prejudiced by his attorney’s conduct. That 

conclusion arises from the Majority’s belief that the Sixth 

Amendment right that has been abridged by the district court’s 

abuse of discretion was Senke’s right to effective assistance of 

counsel, rather than his right to substitute counsel.

2 The former 

right is, as my colleagues explain, subject to harmless error 

analysis and the requirement that a defendant demonstrate 

prejudice pursuant to Strickland v. Washington.

3 However, the 

court’s failure to inquire into Senke’s request for substitute 

counsel was an abuse of discretion that is not subject to a

harmless error inquiry.4 Rather, precedent from our court and 

1 Maj. Op. at 2. 

2

Id. 

3 466 U.S. 668, 684–85 (1984).

4 As I explain in Part III, infra, the Supreme Court has 

recognized an indigent defendant’s right to substitute counsel 

where it is in the “interests of justice.” See Martel v. Clair, 565 

U.S. 648, 658 (2012). We have interpreted the interests of 

justice standard to require a showing of “good cause,” i.e. that 

the defendant had “a conflict of interest, a complete breakdown 

in communication, or an irreconcilable conflict” with the

attorney. United States v. Welty, 674 F.2d 185, 188 (3d Cir. 

1982). Where a defendant shows good cause and a district 

court fails to substitute counsel, the error is the functional 

equivalent of the denial of a defendant’s right to counsel of 
2

the Supreme Court require that, at the very least, we remand to 

the district court with instructions to determine if the conflict 

between Senke and his counsel was irreconcilable.5If it was, 

and it clearly may have been, there was structural error that 

requires a new trial. 

I.

As my colleagues recognize, the district court did not 

appropriately inquire to determine whether there was “a 

conflict of interest, a complete breakdown in communication, 

or an irreconcilable conflict” between Senke and his appointed 

trial attorney.

6 Such an inquiry is vital because “[t]he right to 

counsel is among those ‘constitutional rights (which are) so 

basic to a fair trial that their infraction can never be treated as 

harmless error.’”7 Where the relationship between an indigent 

choice. See id.; see also United States v. Smith, 640 F.3d 580, 

590 (4th Cir. 2011) (“Once a district court has determined that

[a] defendant and his counsel’s communication has so 

deteriorated as to prevent the mounting of an adequate defense 

. . . an appointment of substitute counsel is part and parcel of a 

defendant’s Sixth Amendment right.”). As the Supreme Court 

has explained, a denial of this right is not subject to a prejudice 

analysis. See United States v. Gonzalez-Lopez, 548 U.S. 140, 

148 (2006) (“Where the right to be assisted by counsel of one’s 

choice is wrongly denied . . . it is unnecessary to conduct an 

ineffectiveness or prejudice inquiry to establish a Sixth 

Amendment violation.”).

5 See Martel, 565 U.S. at 666 n.4.

6 United States v. Diaz, 951 F.3d 148, 154 (3d Cir. 2020).

7 Welty, 674 F.2d at 194 n.6 (citing Chapman v. California, 386 

U.S. 18, 23 & n.8).
3

defendant and the attorney has broken down and the defendant 

demonstrates good cause for substitution of counsel, new 

counsel must be appointed.8

Here, there was only a rather perfunctory exchange 

between the court and counsel which revealed the court’s 

disinclination to regard Senke’s request with the seriousness 

the law requires. As the Majority recounts, at a pretrial 

conference, Senke’s attorney told the court that Senke was not 

happy with him because Senke wanted him to “fil[e] more 

motions.”9 My colleagues quite correctly reject the 

government’s attempt to argue that Senke never requested 

substitute counsel. As my colleagues explain, Senke was a pro 

se litigant and his pretrial letter to the court “raised serious 

issues, including that Comerford was not preparing for trial and 

had called the evidence ‘to[o] disgusting’ to review with 

Senke.”10 My colleagues cite to Higgs v. Attorney General,

11

where we explained that our “policy of liberally construing pro 

se submissions is driven by the understanding that . . . [there] 

is an obligation on the part of the court to make reasonable 

8

Id. at 188. See also United States v. Velazquez, 855 F.3d 1021, 

1037 (9th Cir. 2017) (concluding that where “the district court 

abused its discretion by denying Velazquez’s requests to 

substitute counsel without conducting an adequate inquiry[,]

[t]he result was a constructive denial of counsel that require[d]

[the court] to vacate Velazquez’s guilty plea” and remand for 

further proceedings with new counsel). 

9 Maj. Op. at 6 (citing App. 338).

10 Id. at 14 (citing App. 316).

11 655 F.3d 333 (3d Cir. 2011).
4

allowances to protect pro se litigants from inadvertent 

forfeiture of important rights because of their lack of legal 

training.”12 I agree. 

I also agree with my colleagues’ conclusion that 

Senke’s communication to the court “should have indicated to 

the district court that further inquiry was necessary.”13 Rather 

than engaging in the required inquiry, the court summarily 

dismissed any suggestion that Senke’s dissatisfaction with 

counsel was tantamount to a request for a new attorney. The 

court responded by telling counsel that Senke didn’t “have 

much of a chance of losing” Comerford, because he was “the 

second or third guy on this deal.”14 Ironically, the only real 

inquiry came not from the court but from the prosecutor who 

inquired, “[h]e’s not trying to fire you, is he?” Defense counsel 

replied, “[n]ot that I know of.”15 But, of course, Senke was also 

complaining about defense counsel’s lack of communication 

with him.16

12 Maj. Op. at 13, n.75 (quoting Higgs, 655 F.3d at 339).

13 Id. at 14.

14 App. 338. I disagree with my colleagues’ conclusion that this 

remark by the court “is irrelevant to our analysis.” Maj. Op. at 

15, n.84. Although I realize that my colleagues may have 

simply been referring to the fact that the court’s statement did 

not rise to the level of an adequate inquiry, I nevertheless think 

the comment is relevant as it establishes the absence of such an 

inquiry and the court’s predisposition to refrain from 

undertaking that inquiry. 

15 App. 339.

16 Indeed, Senke points to the following exchange at the pretrial 

conference to argue that Comerford was actively working 

against Senke’s interests by suggesting that the court issue an 
5

I therefore agree with the Majority’s holding that the 

trial court abused its discretion in not exploring the nature of 

the conflict between Senke and defense counsel. I must 

nevertheless dissent from the Majority Opinion because my 

colleagues hold that Senke is arguing ineffective assistance of 

counsel and that his claim is therefore subject to a harmless 

error analysis under Strickland. 

II.

Senke is clearly arguing that the court denied him his 

right to counsel not because of any alleged ineffective 

order precluding Comerford from filing any more motions on 

Senke’s behalf. Comerford stated:

I’m just – I just want you to – like, how do you 

want me to cover the record? Do you want me to 

file a motion to let – leave of court to file more 

motions and you deny it? I don’t know how you 

want me to handle it. 

* * * 

So I will try to protect the record, and I will file . 

. . some type of

documentation with the court for leave to file 

additional motions, and then

Your Honor can do whatever you need to do with 

it.

App. 338–39.
6

assistance and consequent prejudice, but because an 

irreconcilable conflict existed between himself and his attorney 

that resulted in a structural error. His brief simply cannot be 

fairly read any other way. It clearly cannot be read as asserting 

the kind of ineffectiveness claim under Strickland that the 

Majority relies upon to support harmless error review.

The relevant arguments in Senke’s brief are structured 

as follows:

I. The district court violated the Sixth 

Amendment by failing to inquire into or 

rule on Mr. Senke’s pretrial motion for 

appointment of new counsel . . . 

A. When an indigent criminal 

defendant moves for appointment of 

new counsel, the court must inquire 

into the reasons for his 

dissatisfaction with his attorney . . . 

B. The district court abused its 

discretion by failing to inquire into 

or rule on Mr. Senke’s pretrial 

motion for appointment of new 

counsel.17

The relevant legal arguments under Senke’s

“Discussion” section of his brief are similarly focused and 

pertain only to the court’s failure to inquire into Senke’s 

request for new counsel. Senke’s brief even cites to specific 

parts of the record where that argument was preserved. It 

17 Appellant’s Br. at i–ii.
7

states: “Mr. Senke preserved the issue by filing one pretrial and 

three posttrial motions for appointment of new counsel.”18 Yet, 

the Majority concedes: “[t]o be certain, if Senke were asserting 

that his right to retained counsel of choice was violated, such 

deprivation would be structural error.”19 But that is exactly 

what he is asserting insofar as the claim pertains to substitute 

counsel. Excerpts from his brief clearly establish this.

My colleagues state:

[I]t is possible to examine the record for 

identifiable mistakes and assess whether those 

mistakes affected the outcome of [Senke’s] trial.

Senke’s claim is therefore more appropriately 

viewed as one for ineffectiveness, which must be 

reviewed for prejudice. The wrinkle, though, is 

that Senke has not attempted to show prejudice 

in this direct appeal.20

They incorrectly conclude from Senke’s briefs and from our 

exchange at oral argument that Senke was asserting a claim of 

ineffective assistance of counsel under Strickland rather than 

structural error for failing to substitute counsel.21 A close 

reading of the transcript of oral argument, however, simply 

does not support the contention that counsel was there asserting 

a Strickland claim rather than structural error. 

A Strickland prejudice analysis was discussed at oral 

argument, but only in response to questions from the panel. 

The exchange began when appellate counsel referred to the 

18 Id. at 2.

19 Maj. Op. at 19.

20 Id. at 23 (internal citations omitted).

21 Id.
8

letter that Senke sent before trial complaining about trial 

counsel. Appellate counsel argued, “properly construed, this 

was clearly a motion for new counsel because he was saying I 

don’t believe I can get a fair trial with this man as my 

attorney.”22 After a few exchanges, appellate counsel was 

basically instructed to argue harmless error: “So either you 

have to show us that this is structural, or you have to 

demonstrate prejudice. Your brief has not made any effort to 

show prejudice. Can you make a prejudice showing here 

today?”23 Appellate counsel responded that he could “go 

through various reasons why [he] believe[d] the attorney’s 

representation at trial wasn’t competent.”24 We then 

interrupted counsel and asked: “the second prong [of 

Strickland] is what you’re being asked about now, and . . . 

[w]hat, if any, prejudice resulted from that dereliction of 

professionalism?”25 But counsel had not raised the specter of a 

dereliction of professionalism; we had. Counsel attempted to 

respond to our inquiry by explaining: “in a series of cases . . . 

which we cite in our brief, when a court-appointed attorney 

should be removed for cause – and we’re assuming, for 

purposes of this question, that he should have been removed 

for cause – then there is a constructive denial . . . of the right to 

22 Transcript of Oral Argument (“Transcript”) at 4.

23 Id. at 8. Senke’s brief made no attempt to establish prejudice 

precisely because he was not arguing ineffective assistance of 

counsel under Strickland but a structural error that resulted 

from the court’s failure to appoint substitute counsel. Given 

that, it would have been self-defeating to then argue prejudice 

in his brief, as we asked him to at oral argument.

24 Id. at 8.

25 Id. at 9.
9

counsel.”26 After a brief exchange, counsel continued: “No 

court has ever required [a showing of prejudice] . . . in this 

situation. If an attorney should have been removed for cause, 

then it’s considered prejudice, per se.”27

We then pressed counsel further:

[to] clarify again. There are two ways you can 

win, one of them is structural or presumption. 

You’re pushing that now, let’s get to that in a 

minute. I want to give you an opportunity, if 

there is anything you can cite to show prejudice, 

this is your chance. If you don’t answer this 

question, then we have to take the whole thing on 

the structural approach.28

After another brief exchange, counsel sought clarification: 

“When you say ‘establish prejudice,’ do you mean that there 

were things that this attorney did that was [sic] prejudicial to 

my client?”29 We responded by again referring to Strickland

and asking “is there anything you can cite in this record that 

would satisfy [the prejudice requirement of Strickland]?”30

Counsel answered, “Absolutely, Your Honor,” and he then 

went on to argue points in the record that he believed would 

satisfy the prejudice prong of Strickland just as we had invited 

him to.31

26 Id.

27 Id.

28 Id. at 9–10 (emphasis added).

29 Id. at 10.

30 Id.

31 Id. at 10, 11.
10

Arguments raised on appeal are defined by, and limited 

to, the arguments outlined in a litigant’s brief. They are not 

defined by issues that were not briefed and raised only at oral 

argument. That axiom should apply with particular force 

where, as here, counsel’s statements at argument were only an 

attempt to respond to questions or direction from the court. In 

fact, we have declined to decide issues raised by the panel 

during argument but not presented in the party’s appellate 

brief.32

III.

In Martel v. Clair, the Supreme Court recognized a 

statutory right to substitute counsel where an indigent 

defendant shows that substitution is in the “interests of 

justice.”33 The Court there cited our opinion in Welty in 

discussing when the interests of justice required substitution of 

counsel.34 A reviewing court can determine whether 

substitution is in the interests of justice by looking at “the 

32 See, e.g., United Artists Theatre Cir., Inc. v. Twp. of 

Warrington, Pa., 316 F.3d 392, 397 (3d Cir. 2003) (noting that 

a prior “panel did not decide [an issue] . . . because 

the issue was raised by the panel on its own at argument and 

was not briefed by the parties . . . .”); United States v. Lennon, 

372 F.3d 535, 541 n.10 (3d Cir. 2004) (“For the same reason 

that we will not consider an argument minted at the reply brief 

stage, we will not consider an argument made by counsel for 

the first time at oral argument.”).

33 565 U.S. at 658 (“‘[T]he interests of justice’ . . . standard 

derives from 18 U.S.C. § 3006A, which governs the 

appointment and substitution of counsel in federal non-capital 

litigation.”).

34 Id. at 663.
11

timeliness of the motion; the adequacy of the district court’s 

inquiry into the defendant’s complaint; and the asserted cause 

for that complaint, including the extent of the conflict or 

breakdown in communication between lawyer and client (and 

the client’s own responsibility, if any, for that conflict).”35 We 

have interpreted this standard to require a showing of “good 

cause;” i.e. where the defendant demonstrates that there was a 

“conflict of interest, a complete breakdown in communication, 

or an irreconcilable conflict with [the] attorney,” substitution 

follows.

36

In Gonzalez-Lopez, the Supreme Court concluded that a 

district court’s erroneous denial of a defendant’s motion to 

substitute counsel was “structural error” and required relief 

without any demonstration of prejudice.37 Although the 

defendant in Gonzalez-Lopez was able to pay for his attorney 

and therefore had a right to counsel of his choice, the Court’s 

conclusion that where substitute counsel is erroneously denied,

the defendant has suffered structural error, applies with equal 

force here.A defendant who has been denied this right need not 

show prejudice to get relief; the defendant merely needs to 

show that good cause existed to substitute counsel and that the 

district court failed to do so.38

35 Id. (citing United States v. Prime, 431 F.3d 1147, 1154 (9th 

Cir. 2005); United States v. Doe, 272 F.3d 116, 122–123 (2nd 

Cir. 2001); Welty, 674 F.2d at 188).

36 Welty, 674 F.2d at 188; accord Diaz, 951 F.3d at 154.

37 Gonzalez-Lopez, 548 U.S. at 150.

38 See, e.g., Welty, 674 F.2d at 188;Velazquez, 855 F.3d at 1034 

(“A defendant need not show prejudice when the breakdown 

of a relationship between attorney and client from 
12

In concluding otherwise, the Majority attempts to buoy 

its view of the essence of Senke’s constitutional claim by 

suggesting that he has confused his claim of the denial of 

counsel of choice with the Sixth Amendment’s guarantee of 

effective assistance of counsel. We are told that the latter 

requires competent representation and thus lends itself to an 

inquiry into prejudice whereas the former protects the 

structural integrity of the trial. However, in Gonzalez-Lopez, 

the Supreme Court rejected the same kind of hair-splitting that 

my colleagues engage in here. There, the Court rejected the 

state’s argument “that the Sixth Amendment violation is not 

‘complete’ unless the defendant can show that substitute 

counsel was ineffective within the meaning of Strickland v. 

Washington . . . i.e., that substitute counsel’s performance was 

deficient and the defendant was prejudiced by it.”39 In 

explaining why Strickland did not apply there, the Court stated: 

the Government’s argument in effect reads the 

Sixth Amendment as a more detailed version of 

the Due Process Clause—and then proceeds to 

give no effect to the details. It is true enough that 

the purpose of the rights set forth in that 

Amendment is to ensure a fair trial; but it does 

not follow that the rights can be disregarded so 

long as the trial is, on the whole, fair.40

irreconcilable differences results in the complete denial of 

counsel.”).

39 Gonzalez-Lopez, 548 U.S. at 144 (internal citation omitted).

40 Id. at 145. 
13

Of course, as mentioned, Senke’s counsel was 

appointed to him and therefore he was differently situated than 

the defendant in Gonzalez-Lopez, who could afford his own 

counsel, but the Court’s fundamental teaching, that an 

erroneous deprivation of counsel is structural error, is no less 

vibrant for a defendant with appointed counsel.41 The Court in 

Gonzalez-Lopez was concerned with the “erroneous” 

“deprivation of counsel,” concluding that such deprivation was 

structural error.42 So too in a case where an indigent defendant 

shows cause – that there was a conflict of interest, a complete

breakdown in communication, or an irreconcilable conflict 

41 As the Majority notes, the Court in Gonzalez-Lopez stated 

that “the right to counsel of choice does not extend to 

defendants who require counsel to be appointed for them,” id.

at 151, but that statement, which was dicta, did nothing to alter 

the structural error holding of the case. In fact, in making that 

statement, the Court cited to Caplin & Drysdale, Chartered v. 

United States, 491 U.S. 617, 626 (1989), where it concluded 

that “[a] defendant has no Sixth Amendment right to spend 

another person’s money for services rendered by an attorney.” 

Id. (emphasis added). When considering the case of an indigent 

defendant, the Gonzalez-Lopez Court’s statement is best read 

in that context, as a statement on the practical limitations 

indigent defendants face when requesting substitute counsel –

because the defendant cannot afford substitute counsel, the 

defendant will have to do with appointed counsel. I do not, 

however, read the Court’s statement in Gonzalez-Lopez as 

doing what the Majority suggests; namely, precluding an 

indigent defendant from raising a claim of structural error 

where the defendant was erroneously denied substitute 

counsel.

42 Gonzalez-Lopez, 548 U.S. at 146.
14

with the attorney – and is erroneously denied substitute 

counsel. That defendant has similarly been “depriv[ed] of 

counsel . . . erroneous[ly]” and the error in the case is structural. 

That indigent defendant, too, need not demonstrate prejudice 

to get relief.

The Majority claims that “Senke’s claim does not fall 

into one of the established categories of structural error.”43 But 

as we have consistently held, if Senke can show good cause

then he is entitled to substitution of counsel.44 The erroneous 

deprivation of such substitute counsel is akin to the denial of a 

defendant’s Sixth Amendment right to choice of counsel, 

which, unequivocally, is structural error. 

The Court’s reasoning in Gonzalez-Lopez is therefore

equally applicable here: “[T]he erroneous denial of counsel 

bears directly on the framework within which the trial 

proceeds. . . . It is impossible to know what different choices 

the rejected counsel would have made, and then to quantify the 

impact of those different choices on the outcome of the 

proceedings.”

45 Accordingly, where “the deprivation of 

counsel [i]s erroneous[,] [n]o additional showing of prejudice 

is required to make the violation ‘complete.’”46 This is true 

whether a defendant can pay for an attorney or not. “Harmlesserror analysis in such a context would be a speculative inquiry 

into what might have occurred in an alternate universe.”

47 An 

indigent defendant is constitutionally entitled to go to trial with 

43 Maj. Op. at 21.

44 See Welty, 674 F.2d at 188.

45 Id. at 150 (internal citations and quotations omitted).

46 Id. at 146.

47 Id. at 150.
15

an attorney with whom the defendant does not have an 

irreconcilable conflict.48

We have also previously concluded that when a 

defendant has been deprived of the right to substitute counsel, 

the error requires reversal without a prejudice inquiry. In 

Welty, we reversed and remanded where the trial court refused 

to appoint new counsel and where we were not convinced that 

the court adequately investigated the defendant’s decision to 

proceed pro se.49 And in McMahon v. Fulcomer,

50 we also 

reversed and remanded where the district court granted defense 

counsel’s motion to withdraw and denied defendant’s motion 

for a continuance, which would have allowed him time to 

procure substitute counsel.51 We did not engage in a prejudice 

analysis following the district court’s erroneous decision to 

deny substitute counsel in either case. 

The Majority concludes that because the defendants in 

such cases were forced to choose between counsel with whom 

they were dissatisfied and with self-representation, the cases 

are inapposite.52 But that distinction is without a difference. 

Rather, it is merely a reflection of the reality that these cases 

48 See United States v. Smith, 640 F.3d 580, 590 (4th Cir. 2011)

(“[T]o compel one charged with grievous crime to undergo 

trial with the assistance of an attorney with whom he has 

become embroiled in irreconcilable conflict is to deprive him 

of the effective assistance of any counsel whatsoever.”) 

(citations omitted).

49 674 F.2d at 194.

50 821 F.2d 934 (3d Cir. 1987).

51 Id. at 944.

52 Maj. Op. at 17–18.
16

often arise in that posture. The fact that the defendants were 

forced to choose between self-representation and counsel that 

they had lost faith in, however, does not negate the proposition 

that substitute counsel must be provided when there is an 

adequate showing of good cause.

My colleagues conclude that these cases are not helpful 

because our primary concern there was different from our 

concern here. They claim that our concern in prior cases was 

whether the district court adequately ensured that the 

defendants’ decisions to proceed pro se were knowing and 

voluntary.53 The Majority notes that here, “despite his . . . 

misgivings,” Senke did not proceed pro se, but rather decided 

to go to trial with Comerford.54 While it is true that we were 

concerned with the district courts’ failures to appropriately

inquire into defendants’ decisions to proceed pro se in Welty

and McMahon, it does not follow that we are therefore at 

liberty to ignore the clear conclusion from those cases. Those 

cases stand for the proposition that an inquiry into prejudice is 

not appropriate in circumstances analogous to the 

circumstances here. 

Moreover, in disregarding the teaching of our prior 

cases, my colleagues ignore the fact that an appropriate inquiry 

here would almost certainly have forced Senke to either waive 

his right to counsel and proceed pro se or proceed to trial 

represented by Comerford. Of course, the constitutional 

viability of the latter option turns on the extent to which the 

relationship between Senke and Comerford had deteriorated 

and whether any conflict was irreconcilable. Given Senke’s 

53 See Maj. Op. at 17 & n.38.

54 Id. at 22.
17

representation that Comerford found the discovery here “to[o]

disgusting” to review, that is not at all unlikely. However, 

Senke’s case never advanced to the point where the nature of 

the conflict with defense counsel was explored. That is the 

primary distinction between this case and our prior cases.

However, it is a distinction without a difference given the 

district court’s failure to ascertain anything further about the 

conflict Senke had with Comerford. Accordingly, the remedy 

for that abuse of discretion should be a remand to allow the 

district court to determine if the conflict was irreconcilable. If 

it was, a new trial with substitute counsel is required. 

Other circuit courts of appeals agree that a showing of 

prejudice is not required for relief where a district court 

erroneously fails to substitute counsel. For example, the Court 

of Appeals for the Ninth Circuit recently concluded: “[w]here 

a criminal defendant has, with legitimate reason, completely 

lost trust in his attorney, and the trial court refuses to remove 

the attorney, the defendant is constructively denied counsel.”55

Under these circumstances, “[a] defendant need not show 

prejudice.”56 Similarly, in United States v. Jennings,

57 the 

Court of Appeals for the Sixth Circuit concluded that, based on 

the appellate record, it was “unable to determine whether the 

district court discharged its responsibility of ascertaining the 

reasons underlying the defendant’s dissatisfaction with 

[appointed] counsel.”58 Accordingly, the court remanded “for 

the purpose of allowing the district court to personally inquire 

from each defendant his reasons for dissatisfaction with 

55 Velazquez, 855 F.3d at 1033–34.

56 Id. at 1034.

57 945 F.2d 129 (6th Cir. 1991).

58 Id. at 132.
18

counsel.”59 The panel instructed the district court that if, on 

remand, it found “good cause” to substitute counsel, “each 

[defendant] would be entitled to new appointed counsel for retrial,” without a showing that the appointed attorneys who 

represented the defendants at trial were ineffective.60 We 

should do the same here. 

IV.

We have consistently held that “the district court must 

engage in at least some inquiry as to the reason for the 

defendant’s dissatisfaction with his existing attorney.”61

“[E]ven when the trial judge strongly suspects that the 

defendant’s requests are disingenuous and designed solely to 

manipulate the judicial process and to delay the trial” or where 

the record reveals “overwhelming evidence of [the 

defendant’s] guilt,” a court cannot give short shrift to this 

inquiry.62

59 Id.

60 Id. Additionally, in United States v. Collado-Rivera, the 

Sixth Circuit concluded that the “district court abused its 

discretion by summarily denying [a] post-trial motion for new 

counsel.” 759 F. App’x 455, 467 (6th Cir. 2019). It held “[t]he 

appropriate remedy is to remand for a hearing on the issue 

whether, at the time of sentencing, there was good cause for 

substitution of counsel.” Id. On remand, “[i]f the district court 

determine[d] that [the defendant] had good cause for 

substitution of counsel,” the court held that the defendant 

“should be re-sentenced” with new counsel. Id.

61 Diaz, 951 F.3d at 154.

62 Welty, 674 F.2d at 186, 187.
19

We reaffirmed in Diaz that the inquiry is designed to 

determine whether good cause, i.e. “a conflict of interest, a 

complete breakdown in communication, or an irreconcilable 

conflict,”

63 exists between a defendant and his or her attorney. 

If it does, the defendant is entitled to new counsel. And where 

a court fails to perform such an inquiry, remand is required.64

In Martel, the Supreme Court determined that where a 

district court abuses its discretion in failing to inquire into a 

defendant’s complaints about counsel, (as my colleagues 

realize the district court did here), the appropriate remedy is to 

remand to the district court for a hearing to determine whether 

substitution was warranted. The Court put it plainly: If a 

district court “abuse[s] its discretion in denying [a defendant’s] 

substitution motion without inquiry[,] [t]he way to cure that 

error [is] to remand to the district court to decide whether 

substitution was appropriate at the time of [the defendant’s] 

letter” requesting substitution.65 The focus of the inquiry is not

on finding any deficiencies in the lawyer’s performance after 

the defendant files the substitution motion, but rather on the 

nature of the defendant’s relationship with the appointed

lawyer when the substitution motion is filed.

66 In describing 

63 Diaz, 951 F.3d at 154.

64 See Martel, 565 U.S. at 666 n.4.

65 Id.

66 The Martel Court can be read to have rejected the functional 

equivalent of a prejudice standard, too. The government 

contended that remand was inappropriate because “even if the 

attorney-client relationship ha[d] broken down,” Clair’s 

attorney “ha[d] the required qualifications and [wa]s ‘act[ing] 

as an advocate.’” Id. at 661. But the Court rejected that 

argument. It concluded that the appropriateness of substitution 
20

the appropriate standard, the Court cited to our decision in 

Welty, and to Second and Ninth Circuits’ decisions in United 

States v. Prime,

67 United States v. Doe,68 none of which 

discussed – much less required – a showing of prejudice on the 

substitution issue.

69

In Prime, a panel of the Court of Appeals for the Ninth 

Circuit described the appropriate three-part inquiry to review a 

district court’s denial of a motion to substitute counsel: “1) the 

timeliness of the motion; 2) the adequacy of the district court’s 

inquiry into the defendant’s complaint; and 3) whether the 

asserted conflict was so great as to result in a complete 

breakdown in communication and a consequent inability to 

present a defense.”70 Similarly, in Doe, a panel of the Court of 

Appeals for the Second Circuit described that the appropriate 

inquiry focused on: “(1) whether [the] defendant made a timely 

motion requesting new counsel; (2) whether the trial court 

did not turn on whether the attorney had been “acting as an 

advocate.” Id. at 663.

67 431 F.3d 1147, 1154 (9th Cir. 2005).

68 272 F.3d 116, 122–123 (2d Cir. 2001).

69 Martel, 565 U.S. at 663. Of course, we recognize that Martel

was a capital case and the question addressed by the Court was 

whether, when evaluating motions to substitute counsel in 

capital cases, the same “interests of justice” standard applied 

there as it did in non-capital cases. Id. at 658. But because the 

Court concluded that the same standard applies to both capital 

and non-capital cases alike, id., the analysis in Martel –

including the Court’s directive to remand to the district court 

for a hearing if the court abuses its discretion in denying 

substitution without an appropriate inquiry – applies with full 

force here.

70 431 F.3d at 1155.
21

adequately inquired into the matter; and (3) whether the 

conflict between the defendant and his attorney was so great 

that it resulted in a total lack of communication preventing an 

adequate defense.”71 Whether the defendant was prejudiced by 

counsel’s performance is simply not part of the inquiry.

Additionally, in Diaz, we considered whether the 

district court abused its discretion in failing to inquire into 

Diaz’s dissatisfaction with counsel. We never inquired into 

whether counsel’s actions after Diaz requested new counsel

prejudiced Diaz. Rather, as in Martel, the inquiry was focused 

on Diaz’s relationship with his attorney when he filed the 

substitution motion. We only concluded that the court did not 

abuse its discretion because “the District Court had good 

reason to believe [Diaz’s attorney] was communicating with 

Diaz such that Diaz’s request was withdrawn or moot.”72 If, as 

the Majority concludes, a showing of prejudice were required, 

we would not have looked at Diaz’s relationship with his 

counsel, but rather evaluated Kalinowski’s performance as 

Diaz’s attorney. But we did not do so there, and we should not 

do so here.

In sum, because the district court abused its discretion 

when it failed to appropriately inquire into Senke’s 

dissatisfaction with counsel and request for substitute counsel, 

we must remand to the district court for a hearing to determine 

whether good cause existed to substitute counsel. If the district 

court determines that good cause existed, then it must vacate 

Senke’s conviction and retry Senke with new appointed 

counsel. 

71 272 F.3d at 122 (internal quotations omitted).

72 Diaz, 951 F.3d at 155.
22

V.

Finally, although I completely agree with, and join, 

Section III.C. of the Majority Opinion explaining why certain 

conditions of supervised release are overbroad, I want to take 

this opportunity to address the fact that some courts in our 

Circuit continue to impose what can only be described as kneejerk and overly broad restrictions on internet and computer use,

despite our repeated admonitions to the contrary. I suspect that 

the persistence of such sentencing practices, despite our 

consistent reversals and remands reflects a lack of 

understanding of technology rather than stubborn resistance to 

our decisions. But whatever the reason, the kind of irrational, 

draconian, and unconstitutional restrictions on internet and 

computer usage that are demonstrated by some of the terms of 

Senke’s supervised release must stop. 

We all recognize that some defendants are capable of 

using computers and the internet to victimize others and that 

reasonable restrictions must therefore be placed on such use in 

appropriate cases. However, as we have so often tried to 

explain, such restrictions must be applied in a thoughtful and 

tailored way based upon the facts of a given case and care must 

be taken not to allow the justification for imposing some 

restrictions to morph into an excuse for imposing broad 

restrictions that impose on First Amendment liberties or 

restrain a defendant’s freedom more than necessary. 

As the Majority correctly recognizes, computer and 

“internet bans are draconian, particularly in a modern society, 

where one can hardly complete menial tasks without using a 
23

computer or the internet.”

73 Thus, “blanket internet restrictions 

will rarely be tailored enough to pass constitutional muster.”74

The district court’s ban on possessing and using “computers . . 

. [and] other electronic communications” devices would cover 

all computers, cell phones, and a broad range of other devices, 

from “gaming devices to fitness trackers to smart watches.”75

On its face, this restriction is too broad. It would “prevent 

[Senke] from doing everyday tasks, like preparing a résumé or 

calling a friend for a ride,” along with commonplace “tasks that 

have migrated to the internet, like shopping, or searching for 

jobs or housing,” even though “none of these activities puts the 

public at risk.”76

Almost 15 years ago, in Voelker, we noted that all new 

cars then being produced contained at least one computer and 

that the order banning access to computers or the internet 

would have prevented the defendant from driving a car, using 

an ATM or a telephone, to name but a few ramifications of an 

untailored ban on computers and the internet.77 For better or 

worse, the presence of computers and the internet in everyday 

life has grown exponentially since then. A subsequent online 

article about auto shows was titled: “How cars have become 

73 Maj. Op at 30 (internal quotations omitted). See also United 

States v. Voelker, 489 F.3d 139, 145 (3d Cir. 2007) (“The 

ubiquitous presence of the [I]nternet and the all-encompassing 

nature of the information it contains are too obvious to require 

extensive citation or discussion.”).

74 Holena, 906 F.3d at 295.

75 Id. at 294.

76 Id. at 292, 294.

77 489 F.3d at 148 n.8.
24

rolling computers.”

78 And that was four years ago. The caption 

of a relatively more recent article in the Wall Street Journal 

speaks volumes about the ubiquitous nature of computers: 

“Your Smartphone Is the Best Computer You Own.”79 And 

yet, the kind of reflexive restrictions that were imposed on 

internet and computer usage here continues. 

Although we have said it so often that it should not need 

repeating, I separately emphasize what my colleagues clearly 

and unambiguously hold in the Majority Opinion. Such bans 

must be tailored and focused on the particular evil that a court 

is concerned with. In addition, they must not be worded so 

broadly as to give “the probation office no guidance on the 

sorts of internet use that it should approve.”80

For courts that continue to insist on ignoring the law of 

this Circuit and reflexively imposing unconstitutional and

irrational restrictions that sweep too broadly and infringe First 

Amendment liberties, I can only respond by quoting our dearly 

78 Steve Mertl, How cars have become rolling computers, The 

Globe and Mail (Mar. 5, 2016),

https://www.theglobeandmail.com/globe-drive/how-carshave-become-rollingcomputers/article29008154/#:~:text=The%20average%20car

%20today%20can,networked%20but%20sometimes%20oper

ating%20independently.

79 David Pierce, Your Smartphone Is the Best Computer You 

Own, The Wall St. Journal (May 23, 2018), 

https://www.wsj.com/articles/your-phone-is-the-bestcomputer-you-ownso-use-it-more-1527084001.

80 Holena, 906 F.3d at 293.
25

departed colleague, Judge Joseph Weis. In Gregory v. Chehi,

81

in explaining the origins of the doctrine of res judicata, Judge 

Weis recounted a statement by a confederate general who, after 

twice refusing a soldier’s request for a furlough, scribbled the 

following on the back of the soldier’s third request: “I told you 

twicest Godamnit know.”82

I can only hope that this is the last time we will have to 

explain (yet again) the practical and constitutional demand that 

courts carefully and individually tailor restrictions on internet 

and computer use to prevent an associated evil. However, if 

history is any teacher, Judge Weis’ ever so appropriate 

exhortation will probably be called to mind at some point yet 

again. 

81 843 F.2d 111 (3d Cir. 1988).

82 Id. at 112.